Slinn on Remedies for Unfair Labour Practices

Sara Slinn's article No Right (to Organize) Without a Remedy: Evidence and Consequences of Failure to Provide Compensatory Remedies for Unfair Labour Practices in British Columbia, which she posted on SSRN last week, now is available for downloading.  The article will be published in McGill L. Rev.  Here's the abstract:

Labour remedies are widely criticized as inadequate for failing to compensate harm caused by violations and, consequently, not effectively deterring employer unfair labour practices (ULPs), particularly during union organizing. This article contends that such remedies ultimately encourage rather than discourage ULPs, by allowing employers to benefit from wrongdoing.

Two approaches to this problem have been proposed: punitive remedies or reducing opportunities for ULPs by adopting card-based certification. However, such statutory changes have proven difficult to achieve. This article proposes an alternative approach: that boards exercise their authority to apply fully compensatory remedies awards addressing all facets of harm caused by ULPs.

This argument is supported by an analysis of seventeen years of ULP cases in British Columbia. Evaluation of termination and employer speech ULP cases demonstrates that remedial awards for these ULPs routinely fail to compensate particular categories of harm: harm to collective employee and union interests.

This article offers adherence to the tradition of voluntarism as an explanation for these routinely deficient awards. The board believes voluntarism demands that it only apply remedies that the wrongdoing employer will voluntarily comply with. If the remedy is too demanding the employer may disregard it. The board fears that this would reduce the board's effectiveness and credibility, since it cannot enforce its own orders. Though possibly helpful in ongoing labour-management relationships, this understanding of voluntarism is inappropriate to the organizing context. At this point, no relationship yet exists between the parties, and the ULP may have occurred precisely because the employer wished to avoid any such relationship. Therefore voluntarism does not provide a solid rationale for deficient remedies for organizing ULPs.

Adopting this proposal for fully compensatory ULP remedies would reduce employer incentives to engage in ULPs, and would protect employees' fundamental statutory freedom to choose whether to have union representation - free of employer interference.

Agreed.  As I observed here at Workplace Prof Blog back in January, "employers routinely and flagrantly violate the law, knowing full well that the reward for violating the law far outweighs any penalty that will be assessed."  A right without a remedy isn't much of a right.

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